On June 24, 2016, the American Civil Liberties Union of Northern California filed this lawsuit in the U.S. District Court for the Northern District of California. The ACLU sued the Secretary of the federal Department of Health and Human Services (HHS) alleging a violation of its First Amendment ...
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On June 24, 2016, the American Civil Liberties Union of Northern California filed this lawsuit in the U.S. District Court for the Northern District of California. The ACLU sued the Secretary of the federal Department of Health and Human Services (HHS) alleging a violation of its First Amendment rights. Specifically, the ACLU argued that HHS violated the constitutional restriction on state establishment of religion by allowing the use of taxpayer funds, including the individual taxes paid by ACLU members, to impose religiously based restrictions on noncitizens.

The ACLU sought a declaration and permanent injunction, requesting that the court order HHS to ensure that grants by its component agency, the Office of Refugee Resettlement (ORR) be implemented without religious restrictions.

The ACLU alleged that HHS, in order to achieve its statutory obligation under the Homeland Security Act and the William Wilberforce Trafficking Victims Protection Reauthorization Act to ensure the best interests of unaccompanied immigrant minors, authorizes ORR to administer federally-funded grants to private organizations that provide care and custody for these minors. Some of these grant recipients are religious organizations, most prominently the U.S. Conference of Conference Bishops (USCCB), which allocates its grant money to many sub-grantee Catholic organizations throughout the country. The USCCB's sub-grantees, as well as other religious organizations running custody programs, object to contraception and abortion on religious grounds. They therefore refuse to facilitate minors' access to reproductive healthcare.

The ACLU further argued that, under both statutory law and because of their unique situation of women who end up in immigration custody, many being the survivors of sexual assault, the women are entitled to reproductive healthcare. If they try to access such services while in custody under USCCB's sub-grantees, however, the religious organizations deny them access and sometimes transfer them to other secular custody programs, even if the transfers are not in their best interest.

These restrictions, the ACLU alleged, violate not only the First Amendment (a violation which directly injures taxpayers) but also the Flores v. Reno agreement, and an ORR regulation implementing the Prison Rape Elimination Act and the Violence Against Women Act. The agreement and regulation mandate that the defendant ensures that minor victims of sexual assault in immigration custody can access family planning services, post-assault care, and abortions.

The parties proceeded with discovery. On Sept. 26, 2016, the defendants filed a motion to dismiss for lack of jurisdiction, citing a lack of standing. The assigned Magistrate Judge Laurel Beeler denied this motion on Nov. 29, 2016, finding the ACLU had standing as a taxpayer. 2016 WL 6962871 (N.D. Cal. Nov. 29, 2016).

On Dec. 15, 2016, the USCCB sought to intervene as a defendant, which the court granted on Feb. 7, 2017. 2017 WL 492833 (N.D. Cal. Feb. 7, 2017). On Feb. 1, 2017, the ACLU filed an amended complaint. In addition to the earlier allegations, the ACLU also asserted that defendants refused to help trafficking victims obtain reproductive health services and apply for visas for same-sex spouses.

On Mar. 9, 2017, defendants moved to transfer the case to the U.S. District Court for the District of Columbia. Defendants argued that the case had no meaningful tie to the Northern District of California, whereas the parties (including ACLU National), witnesses, and operative facts were located in the District of Columbia. The ACLU responded on Mar. 23, 2017, arguing that the case should stay in the Northern District of California where the ACLU of Northern California and its members were located, where unconstitutional activity had partly taken place, and where the court was already familiar with the matter.

Magistrate Judge Beeler held an Apr. 27, 2017 hearing and issued an order the next day, denying defendants' motion to transfer the case. Magistrate Judge Beeler held that defendants had not overcome the deference afforded to the ACLU's choice of forum. 2017 WL 1540606 (N.D. Cal. Apr. 28, 2017).

On Oct. 6, 2017, the ACLU moved for a TRO, amendment of the complaint, and class certification. The ACLU was responding to the federal government’s March 2017 policies preventing shelters from taking any actions facilitating access to abortions, including transportation to medical appointments, without signed approval from the ORR Director. In response, the ACLU sought to add a new plaintiff (who was at a federally funded, secular shelter in Texas) as class representative for a nationwide class of pregnant unaccompanied minors, plus new class claims for injunctive relief due to violations of the minors’ Fifth Amendment right to privacy and liberty and First Amendment right to be free from compelled speech (by being forced to discuss their decision to have an abortion with a crisis pregnancy center). The ACLU also sought a TRO compelling defendants to transport this plaintiff for a scheduled abortion on Oct. 13.

Magistrate Judge Beeler held an Oct. 11 motions hearing and issued an order. She denied all of the ACLU's motions, on the basis that the new plaintiff should bring a separate case – the plaintiff was not in the Northern District of California, none of the relevant events had happened there, and her claims were not "closely related" to the ACLU's Establishment Clause claim. (The ACLU has brought this case in the U.S. District Court for the District of Columbia as Garza v. Hargan, also in this Clearinghouse.) Judge Beeler also permitted several states (Louisiana, Missouri, Nebraska, Ohio, Oklahoma, South Carolina, Texas) to file amici briefs. 2017 WL 4551492 (N.D. Cal. Oct. 11, 2017).

Discovery ended on Dec. 22, 2017. Over the next seven months, parties prepared motions for summary judgment. On August 27, 2018, a case management conference was scheduled for November 1, 2018.